Utah Illegal Immigration Enforcement Act Aug10
This Bill is written in the same language as Arizona's Law!! Which is a good thing...as it specifically states that it is not meant in any way to implement any portion of the National ID Act...but is meant to enforce illegal immigration laws which the federal government seems to be doing everything to undermine!!
Content
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ILLEGAL IMMIGRATION ENFORCEMENT ACT
2011 GENERAL SESSION STATE OF UTAH
LONG TITLE General Description: This bill modifies state law and enacts the "Illegal Immigration Enforcement Act." Highlighted Provisions: This bill: < requires that an officer verify the immigration status of a detained or arrested person upon reasonable suspicion the person is an illegal alien, and provides enforcement exceptions; < clarifies when passengers in a vehicle where the operator has been detained may also be questioned and their immigration status verified; < requires that a law enforcement officer may not consider race, color, or national origin except as permitted by Utah and United States constitutions; < states grounds for a presumption of a person's lawful presence in the United States; < provides for transportation of an illegal alien to federal custody by a state or local law enforcement officer; < provides that a state or local agency may not limit, by any means, the authority of any law enforcement or other governmental agency to assist the federal government in the enforcement of any federal immigration law, including the federal requirement to register as an alien or possess an alien registration document; < provides that any state or local governmental agency is not restricted in sending, receiving, or maintaining immigration status information of any person in carrying out the agency's lawful purposes; < requires verification of immigration status regarding application for public services, benefits, or licenses provided by a state or local governmental agency; < provides that this bill does not implement or authorize the federal REAL ID Act to any extent not currently provided by state law; < provides that a legal resident may bring action against an agency that limits enforcement of federal immigration laws and imposes financial penalties for
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< provides that penalties imposed on the agencies be directed to the multi-agency strike force that deals with crime associated with illegal immigration and human trafficking; < provides criminal penalties for willful failure to complete required alien registration documents or failure to carry an alien registration document as required by federal law; < amends the current state law prohibiting transporting or harboring illegal aliens by removing the limitation to transportation of the alien for a distance greater than 100 miles; and < amends peace officer arrest authority to include making an arrest when the officer has reasonable cause to believe the person is an alien: C C subject to an immigration removal order; and regarding whom a detainer warrant has been issued who has committed or been charged with a felony in another state. Monies Appropriated in this Bill: None Other Special Clauses: This bill takes effect on July 1, 2011. Utah Code Sections Affected: AMENDS: 67-5-22.7, as enacted by Laws of Utah 2009, Chapter 30 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26 77-7-2, as last amended by Laws of Utah 2008, Chapter 293 ENACTS: 76-9-1001, Utah Code Annotated 1953 76-9-1002, Utah Code Annotated 1953 76-9-1003, Utah Code Annotated 1953 76-9-1004, Utah Code Annotated 1953 76-9-1005, Utah Code Annotated 1953 76-9-1006, Utah Code Annotated 1953 -2-
08-12-10 DRAFT 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 Be it enacted by the Legislature of the state of Utah: Section 1. Section 67-5-22.7 is amended to read: 76-9-1007, Utah Code Annotated 1953 76-9-1008, Utah Code Annotated 1953 76-9-1009, Utah Code Annotated 1953 76-9-1010, Utah Code Annotated 1953 76-9-1011, Utah Code Annotated 1953
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67-5-22.7. Multi-agency strike force to combat violent and other major felony crimes associated with illegal immigration and human trafficking -- Fraudulent Documents Identification Unit -- Funding. (1) The Office of the Attorney General is authorized to administer and coordinate the operation of a multi-agency strike force to combat violent and other major felony crimes committed within the state that are associated with illegal immigration and human trafficking. (2) The office shall invite officers of the U.S. Immigration and Customs Enforcement and state and local law enforcement personnel to participate in this mutually supportive, multi-agency strike force to more effectively utilize their combined skills, expertise, and resources. (3) The strike force shall focus its efforts on detecting, investigating, deterring, and eradicating violent and other major felony criminal activity related to illegal immigration and human trafficking. (4) In conjunction with the strike force and subject to available funding, the Office of the Attorney General shall establish a Fraudulent Documents Identification Unit: (a) for the primary purpose of investigating, apprehending, and prosecuting individuals or entities that participate in the sale or distribution of fraudulent documents used for identification purposes; and (b) to specialize in fraudulent identification documents created and prepared for individuals who are unlawfully residing within the state. (5) Funding for the strike force shall include funds from penalties imposed under Section 76-9-1009.
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[(5)] (6) The strike force shall make an annual report on its activities to the governor and the Legislature's Law Enforcement and Criminal Justice Interim Committee by December 1, together with any proposed recommendations for modifications to this section. Section 2. Section 76-9-1001 is enacted to read: 76-9-1001. Title. This part is known as "The Illegal Immigration Enforcement Act." Section 3. Section 76-9-1002 is enacted to read: 76-9-1002. Definitions. As used in this part: (1) "Alien" means a person who is not a citizen or national of the United States. (2) "ICE" means the federal Immigration and Customs Enforcement agency of the United States Department of Homeland Security. (3) "Law enforcement officer" has the same meaning as in Section 53-13-103. (4) "SAVE program" means the federal Systematic Alien Verification for Entitlements program operated by the federal Department of Homeland Security. (5) "Verify immigration status" or "verification of immigration status" means the determination of a person's immigration status by: (a) a law enforcement officer who is authorized by a federal agency to determine an alien's immigration status; or (b) the United States Department of Homeland Security, ICE, or other federal agency authorized to provide immigration status as provided by 8 U.S.C. 1373(c). Section 4. Section 76-9-1003 is enacted to read: 76-9-1003. Detention or arrest -- Determination of immigration status. (1) (a) When any law enforcement officer acting in the enforcement of any state law or local ordinance conducts any lawful stop, detention, or arrest of a person, and the officer has a reasonable suspicion that the person is an alien and is present in the United States unlawfully, the officer shall attempt to verify the immigration status of the person, except as allowed under Subsection (1)(b). (b) In individual cases, the law enforcement officer may forego the verification of immigration status under Subsection (1)(a) if the determination could hinder or obstruct a criminal investigation. -4-
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(2) When a law enforcement officer makes a lawful stop, detention, or arrest under Subsection (1) of the operator of a vehicle, and while investigating or processing the primary offense, the officer makes observations that give the officer reasonable suspicion that the operator or any of the passengers in the vehicle are violating Section 76-5-309, 76-5-310, or 76-10-901, which concern smuggling and transporting illegal aliens, the officer shall, to the extent possible within a reasonable period of time: (a) detain the occupants of the vehicle to investigate the suspected violations; and (b) inquire regarding the immigration status of the occupants of the vehicle. (3) An arrest made under this section shall be conducted in compliance with Section 77-7-2, which addresses arrests by a peace officer. (4) When a person under Subsection (1) is issued a citation or is arrested and booked into a jail, juvenile detention facility, or correctional facility, the citing officer or the booking officer shall ensure that a request for verification of immigration status of the cited or arrested person is submitted as promptly as is reasonably possible. (5) The law enforcement agency that has custody of a person verified to be an illegal alien shall request that the United States Department of Homeland Security issue a detainer requesting transfer of the illegal alien into federal custody. (6) A law enforcement officer may not consider race, color, or national origin in implementing this section, except to the extent permitted by the constitutions of the United States and this state. Section 5. Section 76-9-1004 is enacted to read: 76-9-1004. Grounds for presumption of lawful presence in United States -Statement to officer. (1) A person is presumed to be lawfully present in the United States for the purposes of this section if the person provides one of the following documents to the law enforcement officer, unless the law enforcement officer has a reasonable suspicion that the document is false or identifies a person other than the person providing the document: (a) a valid Utah driver license; (b) a valid Utah identification card issued under Section 53-3-804; (c) a valid tribal enrollment card or other valid form of tribal membership identification that includes photo identification; or -5-
2011FL-0127/006 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 (d) a valid identification document that:
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(i) includes a photo or biometric identifier of the holder of the document; and (ii) is issued by a federal, state, or local governmental entity that requires proof or verification of legal presence in the United States as a condition of issuance of the document. (2) A person is presumed to be a citizen or national of the United States for purposes of this section if the person makes a statement or affirmation to the law enforcement officer that the person is a United States citizen or national, unless the officer has a reasonable suspicion that the statement or affirmation is false. Section 6. Section 76-9-1005 is enacted to read: 76-9-1005. Illegal alien -- Notification of federal government -- Transportation to federal facility. A state or local law enforcement agency may securely transport an alien who is in the agency's custody and whom the agency has verified is unlawfully present in the United States to a federal detention facility in this state or, with the concurrence of the receiving federal agency, to a federal facility or other point of transfer to federal custody that is outside this state. Section 7. Section 76-9-1006 is enacted to read: 76-9-1006. Enforcement of federal immigration laws. A state or local governmental agency of this state, or any representative of the agency, may not: (1) limit or by any means restrict by ordinance, regulation, policy, practice, or in any other manner the authority of any law enforcement agency or officer, or any state or local governmental agency to assist the federal government in the enforcement of any federal law or regulation governing immigration; or (2) limit or by any means restrict by ordinance, regulation, policy, practice, or in any other manner the authority of any law enforcement agency to investigate or enforce any violation of the federal misdemeanor offenses of willful failure to register as an alien or willful failure to personally possess an alien registration document as required by 8 U.S.C. 1304(e) or 1306(a). Section 8. Section 76-9-1007 is enacted to read: 76-9-1007. Determining an alien's immigration status -- Transfer or maintenance of information. -6-
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(1) Except as limited by federal law, any state or local governmental agency is not restricted or prohibited in any way from sending, receiving , or maintaining information related to the lawful or unlawful immigration status of any person by communicating with any federal, state, or local governmental entity for any lawful purpose, including: (a) determining a person's eligibility for any public benefit, service, or license provided by any federal agency, by this state, or by any political subdivision of this state; (b) confirming a person's claim of residence or domicile if determination is required by state law or a judicial order issued pursuant to a civil or criminal proceeding in this state; (c) if the person is an alien, determining if the person is in compliance with the federal registration laws of Title II, Part 7, Immigration and Nationality Act; or (d) a valid request for verification of the citizenship or immigration status of any person pursuant to 8 U.S.C. 1373. (2) This section does not implement, authorize, or establish the federal REAL ID Act of 2005, P.L. 109-13, Division B; 119 Stat. 302, as provided by Section 53-3-104.5, regarding limitations on the state implementation of the federal REAL ID Act. Section 9. Section 76-9-1008 is enacted to read: 76-9-1008. Proof of immigration status to receive public benefits. (1) (a) Except as provided in Subsection (1)(c) or where exempted by federal law, every state or local governmental agency shall verify under Subsection (1)(d) the lawful presence in the United States of any person who has made an application for: (i) a state or local public benefit as defined in United States Code Title 8, Section 1621; or (ii) a federal public benefit, as defined in Title 8 U.S.C. Section 1611, that is administered by the agency. (b) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin. (c) Verification of lawful presence under this section is not required for: (i) assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure; (ii) short-term, noncash, in-kind emergency disaster relief; -7-
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(iii) public health assistance for immunizations regarding diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by a communicable disease; or (iv) programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter as specified by the United States Attorney General, in the sole and unreviewable discretion of the United States Attorney General after consultation with appropriate federal agencies and departments that: (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the income or resources of the individual recipient; or (C) are necessary for the protection of life or safety. (d) Verification of lawful presence in the United States by the agency required to make the verification requires that the applicant under this section execute an affidavit under penalty of perjury that the applicant: (i) is a United States citizen; or (ii) is a qualified alien as defined by 8 U.S.C. 1641. (e) The agency or political subdivision providing state or local public benefits shall provide notary public services at no cost to the applicant. (f) (i) When an applicant has executed the affidavit under this section, the applicant's eligibility for benefits shall be verified through the SAVE program or an equivalent program designated by the United States Department of Homeland Security. (ii) Until eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section. (g) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed under this section is guilty of public assistance fraud under Section 76-8-1205. (h) If the affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C. Section 911, the agency requiring the affidavit shall file a complaint with the United States Attorney for the applicable federal judicial district based upon the venue in which the affidavit was executed.
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(i) Agencies may, with the with the concurrence of the Office of the Utah Attorney General, adopt variations to the requirements of the provisions of this section which provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of this state. (j) It is unlawful for any state or local governmental entity of this state to provide any state, local, or federal benefit, as defined in United States Code Title 8, Section 1621 or Section 1611, in violation of this section. (k) A legal resident of Utah may bring a civil action under Section 76-9-1007 against an agency which does not verify eligibility of applicants for state and local public benefits, in violation of the provisions of this section. (2) If an agency under Subsection (1) determines it has reasonable suspicion that a person making an application for any benefit, service, or license has violated or attempted to violate any fraud provision of the Utah Code, the agency shall provide the information to the local law enforcement agency. Section 10. Section 76-9-1009 is enacted to read: 76-9-1009. Legal resident may bring action regarding agency that limits enforcement of federal immigration laws. (1) A state or local governmental entity may not adopt or implement a policy that limits or restricts the enforcement of federal immigration laws, including 8 U.S.C. 1373 and 1644, to less than the full extent permitted by federal law. (2) A legal resident of this state may bring an action in district court to challenge any state or local governmental entity that acts in violation of Subsection (1). (3) (a) If the court finds that a governmental entity has violated Subsection (1), the court shall order that the governmental entity pay a civil penalty of not less than $500, but not more than $5,000 for each day the policy under Subsection (1) has remained in effect subsequent to the fourteenth day after the date the action was filed under Subsection (2). (b) The penalty shall be paid to the court, which shall transfer the funds for use by the multi-agency strike force created under Section 67-5-22.7. (4) (a) A law enforcement officer is indemnified by the officer's employing agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action brought under this section in which the officer may be a defendant -9-
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by reason of the officer's being or having been a employed by a law enforcement agency. (b) An officer under Subsection (4)(a) is not indemnified if the court finds that the officer acted in bad faith. Section 11. Section 76-9-1010 is enacted to read: 76-9-1010. Willful failure of alien to register and carry registration -- Criminal penalty. (1) (a) A person in violation of 8 U.S.C. 1304(e) or 1306(a), as these sections are in effect on July 1, 2011, is guilty of the offense of willful failure to complete or carry an alien registration document. (b) A first or second violation of this section is a class A misdemeanor and: (i) for a first violation, the fine may not be more than $100 and incarceration may not be for more than 20 days; and (ii) for a second violation, incarceration may not be for more than 60 days. (c) A third or subsequent violation of this section is a third degree felony. (2) In addition to any other penalty imposed for violation of this section, the court shall order that the convicted person pay the costs of incarceration, if incarceration is imposed, in accordance with the daily incarceration rate as defined by Section 64-13e-102, unless the court states on the record its reasons for not imposing the costs or for imposing less than the actual costs. (3) This section does not apply to a person who holds current authorization from the federal government to remain in the United States. Section 12. Section 76-9-1011 is enacted to read: 76-9-1011. Implementation to be consistent with federal law and civil rights. All state and local agencies shall implement this section in a manner that is consistent with federal laws that regulate immigration, protect the civil rights of all persons, and establish the privileges and immunities of United States citizens. Section 13. Section 76-10-2901 is amended to read: 76-10-2901. Transporting or harboring aliens -- Definition -- Penalties. (1) [For purposes of] As used in this part, "alien" means an individual who is illegally present in the United States. (2) It is unlawful for a person to: - 10 -
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(a) transport, move, or attempt to transport into this state [or for a distance of greater than 100 miles] within the state an alien for commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien is in the United States in violation of federal law, in furtherance of the illegal presence of the alien in the United States; [or] (b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or shelter from detection an alien in a place within this state, including a building or means of transportation for commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien is in the United States in violation of federal law[.]; (c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in violation of law; or (d) engage in any conspiracy, for commercial advantage or private financial gain, to commit any of the offenses listed in this Subsection (2). (3) (a) A person who violates Subsection (2)(a), (c), or (d) is guilty of a third degree
(b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor. (4) Nothing in this part prohibits or restricts the provision of: (a) a state or local public benefit described in 8 U.S.C., Section 1621(b); or (b) charitable or humanitarian assistance, including medical care, housing, counseling, food, victim assistance, religious services and sacraments, and transportation to and from a location where the assistance is provided, by a charitable, educational, or religious organization or its employees, agents, or volunteers, using private funds. (5) (a) It is not a violation of this part for a religious denomination or organization or an agent, officer, or member of a religious denomination or organization to encourage, invite, call, allow, or enable an alien to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses. (b) Subsection (5)(a) applies only to an alien who has been a member of the religious denomination or organization for at least one year. Section 14. Section 77-7-2 is amended to read: - 11 -
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A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person: (1) (a) for any public offense committed or attempted in the presence of any peace officer; and (b) as used in this Subsection (1), "presence" includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses; (2) when the peace officer has reasonable cause to believe a felony or a class A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it; (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may: (a) flee or conceal himself to avoid arrest; (b) destroy or conceal evidence of the commission of the offense; or (c) injure another person or damage property belonging to another person; [or] (4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301.5[.]; (5) when the peace officer has reasonable cause to believe that the person is an alien: (a) subject to a civil removal order issued by an immigration judge; (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U.S.C. 1101(a)(43); or (d) who has willfully failed to comply with federal alien registration laws. Section 15. Effective date. This bill takes effect on July 1, 2011.
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ILLEGAL IMMIGRATION ENFORCEMENT ACT
2011 GENERAL SESSION STATE OF UTAH
LONG TITLE General Description: This bill modifies state law and enacts the "Illegal Immigration Enforcement Act." Highlighted Provisions: This bill: < requires that an officer verify the immigration status of a detained or arrested person upon reasonable suspicion the person is an illegal alien, and provides enforcement exceptions; < clarifies when passengers in a vehicle where the operator has been detained may also be questioned and their immigration status verified; < requires that a law enforcement officer may not consider race, color, or national origin except as permitted by Utah and United States constitutions; < states grounds for a presumption of a person's lawful presence in the United States; < provides for transportation of an illegal alien to federal custody by a state or local law enforcement officer; < provides that a state or local agency may not limit, by any means, the authority of any law enforcement or other governmental agency to assist the federal government in the enforcement of any federal immigration law, including the federal requirement to register as an alien or possess an alien registration document; < provides that any state or local governmental agency is not restricted in sending, receiving, or maintaining immigration status information of any person in carrying out the agency's lawful purposes; < requires verification of immigration status regarding application for public services, benefits, or licenses provided by a state or local governmental agency; < provides that this bill does not implement or authorize the federal REAL ID Act to any extent not currently provided by state law; < provides that a legal resident may bring action against an agency that limits enforcement of federal immigration laws and imposes financial penalties for
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< provides that penalties imposed on the agencies be directed to the multi-agency strike force that deals with crime associated with illegal immigration and human trafficking; < provides criminal penalties for willful failure to complete required alien registration documents or failure to carry an alien registration document as required by federal law; < amends the current state law prohibiting transporting or harboring illegal aliens by removing the limitation to transportation of the alien for a distance greater than 100 miles; and < amends peace officer arrest authority to include making an arrest when the officer has reasonable cause to believe the person is an alien: C C subject to an immigration removal order; and regarding whom a detainer warrant has been issued who has committed or been charged with a felony in another state. Monies Appropriated in this Bill: None Other Special Clauses: This bill takes effect on July 1, 2011. Utah Code Sections Affected: AMENDS: 67-5-22.7, as enacted by Laws of Utah 2009, Chapter 30 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26 77-7-2, as last amended by Laws of Utah 2008, Chapter 293 ENACTS: 76-9-1001, Utah Code Annotated 1953 76-9-1002, Utah Code Annotated 1953 76-9-1003, Utah Code Annotated 1953 76-9-1004, Utah Code Annotated 1953 76-9-1005, Utah Code Annotated 1953 76-9-1006, Utah Code Annotated 1953 -2-
08-12-10 DRAFT 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 Be it enacted by the Legislature of the state of Utah: Section 1. Section 67-5-22.7 is amended to read: 76-9-1007, Utah Code Annotated 1953 76-9-1008, Utah Code Annotated 1953 76-9-1009, Utah Code Annotated 1953 76-9-1010, Utah Code Annotated 1953 76-9-1011, Utah Code Annotated 1953
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67-5-22.7. Multi-agency strike force to combat violent and other major felony crimes associated with illegal immigration and human trafficking -- Fraudulent Documents Identification Unit -- Funding. (1) The Office of the Attorney General is authorized to administer and coordinate the operation of a multi-agency strike force to combat violent and other major felony crimes committed within the state that are associated with illegal immigration and human trafficking. (2) The office shall invite officers of the U.S. Immigration and Customs Enforcement and state and local law enforcement personnel to participate in this mutually supportive, multi-agency strike force to more effectively utilize their combined skills, expertise, and resources. (3) The strike force shall focus its efforts on detecting, investigating, deterring, and eradicating violent and other major felony criminal activity related to illegal immigration and human trafficking. (4) In conjunction with the strike force and subject to available funding, the Office of the Attorney General shall establish a Fraudulent Documents Identification Unit: (a) for the primary purpose of investigating, apprehending, and prosecuting individuals or entities that participate in the sale or distribution of fraudulent documents used for identification purposes; and (b) to specialize in fraudulent identification documents created and prepared for individuals who are unlawfully residing within the state. (5) Funding for the strike force shall include funds from penalties imposed under Section 76-9-1009.
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[(5)] (6) The strike force shall make an annual report on its activities to the governor and the Legislature's Law Enforcement and Criminal Justice Interim Committee by December 1, together with any proposed recommendations for modifications to this section. Section 2. Section 76-9-1001 is enacted to read: 76-9-1001. Title. This part is known as "The Illegal Immigration Enforcement Act." Section 3. Section 76-9-1002 is enacted to read: 76-9-1002. Definitions. As used in this part: (1) "Alien" means a person who is not a citizen or national of the United States. (2) "ICE" means the federal Immigration and Customs Enforcement agency of the United States Department of Homeland Security. (3) "Law enforcement officer" has the same meaning as in Section 53-13-103. (4) "SAVE program" means the federal Systematic Alien Verification for Entitlements program operated by the federal Department of Homeland Security. (5) "Verify immigration status" or "verification of immigration status" means the determination of a person's immigration status by: (a) a law enforcement officer who is authorized by a federal agency to determine an alien's immigration status; or (b) the United States Department of Homeland Security, ICE, or other federal agency authorized to provide immigration status as provided by 8 U.S.C. 1373(c). Section 4. Section 76-9-1003 is enacted to read: 76-9-1003. Detention or arrest -- Determination of immigration status. (1) (a) When any law enforcement officer acting in the enforcement of any state law or local ordinance conducts any lawful stop, detention, or arrest of a person, and the officer has a reasonable suspicion that the person is an alien and is present in the United States unlawfully, the officer shall attempt to verify the immigration status of the person, except as allowed under Subsection (1)(b). (b) In individual cases, the law enforcement officer may forego the verification of immigration status under Subsection (1)(a) if the determination could hinder or obstruct a criminal investigation. -4-
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(2) When a law enforcement officer makes a lawful stop, detention, or arrest under Subsection (1) of the operator of a vehicle, and while investigating or processing the primary offense, the officer makes observations that give the officer reasonable suspicion that the operator or any of the passengers in the vehicle are violating Section 76-5-309, 76-5-310, or 76-10-901, which concern smuggling and transporting illegal aliens, the officer shall, to the extent possible within a reasonable period of time: (a) detain the occupants of the vehicle to investigate the suspected violations; and (b) inquire regarding the immigration status of the occupants of the vehicle. (3) An arrest made under this section shall be conducted in compliance with Section 77-7-2, which addresses arrests by a peace officer. (4) When a person under Subsection (1) is issued a citation or is arrested and booked into a jail, juvenile detention facility, or correctional facility, the citing officer or the booking officer shall ensure that a request for verification of immigration status of the cited or arrested person is submitted as promptly as is reasonably possible. (5) The law enforcement agency that has custody of a person verified to be an illegal alien shall request that the United States Department of Homeland Security issue a detainer requesting transfer of the illegal alien into federal custody. (6) A law enforcement officer may not consider race, color, or national origin in implementing this section, except to the extent permitted by the constitutions of the United States and this state. Section 5. Section 76-9-1004 is enacted to read: 76-9-1004. Grounds for presumption of lawful presence in United States -Statement to officer. (1) A person is presumed to be lawfully present in the United States for the purposes of this section if the person provides one of the following documents to the law enforcement officer, unless the law enforcement officer has a reasonable suspicion that the document is false or identifies a person other than the person providing the document: (a) a valid Utah driver license; (b) a valid Utah identification card issued under Section 53-3-804; (c) a valid tribal enrollment card or other valid form of tribal membership identification that includes photo identification; or -5-
2011FL-0127/006 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 (d) a valid identification document that:
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(i) includes a photo or biometric identifier of the holder of the document; and (ii) is issued by a federal, state, or local governmental entity that requires proof or verification of legal presence in the United States as a condition of issuance of the document. (2) A person is presumed to be a citizen or national of the United States for purposes of this section if the person makes a statement or affirmation to the law enforcement officer that the person is a United States citizen or national, unless the officer has a reasonable suspicion that the statement or affirmation is false. Section 6. Section 76-9-1005 is enacted to read: 76-9-1005. Illegal alien -- Notification of federal government -- Transportation to federal facility. A state or local law enforcement agency may securely transport an alien who is in the agency's custody and whom the agency has verified is unlawfully present in the United States to a federal detention facility in this state or, with the concurrence of the receiving federal agency, to a federal facility or other point of transfer to federal custody that is outside this state. Section 7. Section 76-9-1006 is enacted to read: 76-9-1006. Enforcement of federal immigration laws. A state or local governmental agency of this state, or any representative of the agency, may not: (1) limit or by any means restrict by ordinance, regulation, policy, practice, or in any other manner the authority of any law enforcement agency or officer, or any state or local governmental agency to assist the federal government in the enforcement of any federal law or regulation governing immigration; or (2) limit or by any means restrict by ordinance, regulation, policy, practice, or in any other manner the authority of any law enforcement agency to investigate or enforce any violation of the federal misdemeanor offenses of willful failure to register as an alien or willful failure to personally possess an alien registration document as required by 8 U.S.C. 1304(e) or 1306(a). Section 8. Section 76-9-1007 is enacted to read: 76-9-1007. Determining an alien's immigration status -- Transfer or maintenance of information. -6-
08-12-10 DRAFT 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217
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(1) Except as limited by federal law, any state or local governmental agency is not restricted or prohibited in any way from sending, receiving , or maintaining information related to the lawful or unlawful immigration status of any person by communicating with any federal, state, or local governmental entity for any lawful purpose, including: (a) determining a person's eligibility for any public benefit, service, or license provided by any federal agency, by this state, or by any political subdivision of this state; (b) confirming a person's claim of residence or domicile if determination is required by state law or a judicial order issued pursuant to a civil or criminal proceeding in this state; (c) if the person is an alien, determining if the person is in compliance with the federal registration laws of Title II, Part 7, Immigration and Nationality Act; or (d) a valid request for verification of the citizenship or immigration status of any person pursuant to 8 U.S.C. 1373. (2) This section does not implement, authorize, or establish the federal REAL ID Act of 2005, P.L. 109-13, Division B; 119 Stat. 302, as provided by Section 53-3-104.5, regarding limitations on the state implementation of the federal REAL ID Act. Section 9. Section 76-9-1008 is enacted to read: 76-9-1008. Proof of immigration status to receive public benefits. (1) (a) Except as provided in Subsection (1)(c) or where exempted by federal law, every state or local governmental agency shall verify under Subsection (1)(d) the lawful presence in the United States of any person who has made an application for: (i) a state or local public benefit as defined in United States Code Title 8, Section 1621; or (ii) a federal public benefit, as defined in Title 8 U.S.C. Section 1611, that is administered by the agency. (b) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin. (c) Verification of lawful presence under this section is not required for: (i) assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure; (ii) short-term, noncash, in-kind emergency disaster relief; -7-
2011FL-0127/006 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248
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(iii) public health assistance for immunizations regarding diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by a communicable disease; or (iv) programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter as specified by the United States Attorney General, in the sole and unreviewable discretion of the United States Attorney General after consultation with appropriate federal agencies and departments that: (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the income or resources of the individual recipient; or (C) are necessary for the protection of life or safety. (d) Verification of lawful presence in the United States by the agency required to make the verification requires that the applicant under this section execute an affidavit under penalty of perjury that the applicant: (i) is a United States citizen; or (ii) is a qualified alien as defined by 8 U.S.C. 1641. (e) The agency or political subdivision providing state or local public benefits shall provide notary public services at no cost to the applicant. (f) (i) When an applicant has executed the affidavit under this section, the applicant's eligibility for benefits shall be verified through the SAVE program or an equivalent program designated by the United States Department of Homeland Security. (ii) Until eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section. (g) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed under this section is guilty of public assistance fraud under Section 76-8-1205. (h) If the affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C. Section 911, the agency requiring the affidavit shall file a complaint with the United States Attorney for the applicable federal judicial district based upon the venue in which the affidavit was executed.
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08-12-10 DRAFT 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279
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(i) Agencies may, with the with the concurrence of the Office of the Utah Attorney General, adopt variations to the requirements of the provisions of this section which provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of this state. (j) It is unlawful for any state or local governmental entity of this state to provide any state, local, or federal benefit, as defined in United States Code Title 8, Section 1621 or Section 1611, in violation of this section. (k) A legal resident of Utah may bring a civil action under Section 76-9-1007 against an agency which does not verify eligibility of applicants for state and local public benefits, in violation of the provisions of this section. (2) If an agency under Subsection (1) determines it has reasonable suspicion that a person making an application for any benefit, service, or license has violated or attempted to violate any fraud provision of the Utah Code, the agency shall provide the information to the local law enforcement agency. Section 10. Section 76-9-1009 is enacted to read: 76-9-1009. Legal resident may bring action regarding agency that limits enforcement of federal immigration laws. (1) A state or local governmental entity may not adopt or implement a policy that limits or restricts the enforcement of federal immigration laws, including 8 U.S.C. 1373 and 1644, to less than the full extent permitted by federal law. (2) A legal resident of this state may bring an action in district court to challenge any state or local governmental entity that acts in violation of Subsection (1). (3) (a) If the court finds that a governmental entity has violated Subsection (1), the court shall order that the governmental entity pay a civil penalty of not less than $500, but not more than $5,000 for each day the policy under Subsection (1) has remained in effect subsequent to the fourteenth day after the date the action was filed under Subsection (2). (b) The penalty shall be paid to the court, which shall transfer the funds for use by the multi-agency strike force created under Section 67-5-22.7. (4) (a) A law enforcement officer is indemnified by the officer's employing agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action brought under this section in which the officer may be a defendant -9-
2011FL-0127/006 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310
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by reason of the officer's being or having been a employed by a law enforcement agency. (b) An officer under Subsection (4)(a) is not indemnified if the court finds that the officer acted in bad faith. Section 11. Section 76-9-1010 is enacted to read: 76-9-1010. Willful failure of alien to register and carry registration -- Criminal penalty. (1) (a) A person in violation of 8 U.S.C. 1304(e) or 1306(a), as these sections are in effect on July 1, 2011, is guilty of the offense of willful failure to complete or carry an alien registration document. (b) A first or second violation of this section is a class A misdemeanor and: (i) for a first violation, the fine may not be more than $100 and incarceration may not be for more than 20 days; and (ii) for a second violation, incarceration may not be for more than 60 days. (c) A third or subsequent violation of this section is a third degree felony. (2) In addition to any other penalty imposed for violation of this section, the court shall order that the convicted person pay the costs of incarceration, if incarceration is imposed, in accordance with the daily incarceration rate as defined by Section 64-13e-102, unless the court states on the record its reasons for not imposing the costs or for imposing less than the actual costs. (3) This section does not apply to a person who holds current authorization from the federal government to remain in the United States. Section 12. Section 76-9-1011 is enacted to read: 76-9-1011. Implementation to be consistent with federal law and civil rights. All state and local agencies shall implement this section in a manner that is consistent with federal laws that regulate immigration, protect the civil rights of all persons, and establish the privileges and immunities of United States citizens. Section 13. Section 76-10-2901 is amended to read: 76-10-2901. Transporting or harboring aliens -- Definition -- Penalties. (1) [For purposes of] As used in this part, "alien" means an individual who is illegally present in the United States. (2) It is unlawful for a person to: - 10 -
08-12-10 DRAFT 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 felony.
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(a) transport, move, or attempt to transport into this state [or for a distance of greater than 100 miles] within the state an alien for commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien is in the United States in violation of federal law, in furtherance of the illegal presence of the alien in the United States; [or] (b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or shelter from detection an alien in a place within this state, including a building or means of transportation for commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien is in the United States in violation of federal law[.]; (c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in violation of law; or (d) engage in any conspiracy, for commercial advantage or private financial gain, to commit any of the offenses listed in this Subsection (2). (3) (a) A person who violates Subsection (2)(a), (c), or (d) is guilty of a third degree
(b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor. (4) Nothing in this part prohibits or restricts the provision of: (a) a state or local public benefit described in 8 U.S.C., Section 1621(b); or (b) charitable or humanitarian assistance, including medical care, housing, counseling, food, victim assistance, religious services and sacraments, and transportation to and from a location where the assistance is provided, by a charitable, educational, or religious organization or its employees, agents, or volunteers, using private funds. (5) (a) It is not a violation of this part for a religious denomination or organization or an agent, officer, or member of a religious denomination or organization to encourage, invite, call, allow, or enable an alien to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses. (b) Subsection (5)(a) applies only to an alien who has been a member of the religious denomination or organization for at least one year. Section 14. Section 77-7-2 is amended to read: - 11 -
2011FL-0127/006 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 77-7-2. Arrest by peace officers.
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A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person: (1) (a) for any public offense committed or attempted in the presence of any peace officer; and (b) as used in this Subsection (1), "presence" includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses; (2) when the peace officer has reasonable cause to believe a felony or a class A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it; (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may: (a) flee or conceal himself to avoid arrest; (b) destroy or conceal evidence of the commission of the offense; or (c) injure another person or damage property belonging to another person; [or] (4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301.5[.]; (5) when the peace officer has reasonable cause to believe that the person is an alien: (a) subject to a civil removal order issued by an immigration judge; (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U.S.C. 1101(a)(43); or (d) who has willfully failed to comply with federal alien registration laws. Section 15. Effective date. This bill takes effect on July 1, 2011.
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